Special counsel investigation of the January 6 riots in DC: Doj-Trump investigation expansion expansion vs. Denver/Fulton county prosecutor Fani Willis
Indicting an active candidate for the White House would surely spark a political firestorm. And while no decision has been made about whether a special counsel might be needed in the future, DOJ officials have debated whether doing so could insulate the Justice Department from accusations that Joe Biden’s administration is targeting his chief political rival, people familiar with the matter tell CNN.
Political and legal activity during the months prior to the election has not stopped. In the wake of the January 6 riots, the DC US Attorney’s Office has dealt with a lot of stress, as prosecutors continue their efforts to indict hundreds of rioters, even though they are taking to trial or obtaining guilty pleas.
“They can crank up charges on almost anybody if they wanted to,” said one defense attorney working on January 6-related matters, who added defense lawyers have “have no idea” who ultimately will be charged.
Trump and his associates also face legal exposure in Georgia, where Fulton County District Attorney Fani Willis is investigating Trump’s efforts to overturn the 2020 election in the Peach State and expects to wrap her probe by the end of the year.
Special counsels, of course, are hardly immune from political attacks. Both former special counsel Robert Mueller’s Russia investigation and special counsel John Durham’s investigation into the origins of the FBI’s Russia probe came under withering criticism from their opponents.
The Kansas City-based federal prosecutor and national security expert David Stromin has been brought into the investigations because top Justice officials looked to an old guard of former Southern District of New York prosecutors.
Sources say Rody left Sidley Austin in recent weeks to become a senior counsel at the DOJ in the criminal division in Washington, and he left in a lucrative partnership at the firm.
The DC US Attorney’s Office is preparing for January 6 investigations, with an indictment of a former U.S. Attorney general
The team at the DC US Attorney’s Office handling the day-to-day work of the January 6 investigations is also growing – even while the office’s sedition cases against right-wing extremists go to trial.
A handful of other prosecutors have joined the January 6 investigations team, including a high-ranking fraud and public corruption prosecutor who has moved out of a supervisor position and onto the team, and a prosecutor with years of experience in criminal appellate work now involved in some of the grand jury activity.
The decision of whether to charge Trump or his associates will ultimately fall to Attorney General Merrick Garland, whom President Joe Biden picked for the job because his tenure as a judge provided some distance from partisan politics, after Senate Republicans blocked his Supreme Court nomination in 2016.
Several former prosecutors believe the facts exist for a potentially chargeable case. But Garland will have to navigate the politically perilous and historic decision of how to approach the potential indictment of a former President.
It is difficult to say that Monday is going to add to the pressure on the DOJ, which has been investigating Trump for a long time. Garland would be certain to infuriate Democrats who think the department has been slow to pursue Trump if he ignored multiple referrals.
Garland had said that they must avoid any partisan part of their decision making about cases. “That is what I’m intent on ensuring that the Department decisions are made on the merits, and that they’re made on the facts and the law, and they’re not based on any kind of partisan considerations.”
Garland has tough decisions that go beyond Trump. The long-running investigation of Hunter Biden, son of the president, is nearing conclusion, people briefed on the matter say. Also waiting in the wings: a final decision on the investigation of Florida Republican Rep. Matt Gaetz, after prosecutors recommended against charges.
One former Justice Department official with some knowledge about the investigations said that they would not charge before they were ready to charge. “But there will be added pressure to get through the review” of cases earlier than the typical five-year window DOJ has to bring charges.
A quiet period around the election has been observed by Willis, who is seeking to bring witnesses to the grand jury in the coming weeks. CNN indictments could come as early as December, according to sources.
Several witnesses, including a former White House chief of staff and a South Carolina senator, have been subpoenaed in a state investigation into efforts to interfere with the 2020 Georgia election.
The House Select Committee’s January 6 investigation added to the DOJ’s investigative leads from inside the White House, as well as how those disputes resolve in Georgia.
Yet in both investigations, under-seal court activity never subsided, with the Justice Department trying to force at least five witnesses around Trump to secretly provide more information in their grand jury investigations in Washington, DC, CNN has previously reported.
Trump’s legal team successfully put in place a complicated court-directed process for sorting through thousands of documents seized from Mar-a-Lago, to determine whether they’re privileged and off limits to investigators. The intelligence community, and the Justice Department, have access to about 100 records marked as classified, which Trump kept in Florida.
The outcome of the intelligence review of those documents may determine if criminal charges will be filed, according to one source familiar with the Justice Department’s approach.
On Tuesday a federal judge ordered Trump adviser Kash Patel to testify before a grand jury investigating the handling of federal records at Mar-a-Lago, according to two people familiar with the investigation.
The immunity from prosecution granted by the DC District court is a major step in the case and will hopefully lead to the prosecution.
The recommendations under consideration of obstruction of an official proceeding and conspiracy to defraud the federal government match allegations the select committee made against Trump and his elections attorney John Eastman in a previous court proceeding seeking Eastman’s emails. A judge had agreed with the House, finding it could access Eastman’s emails about his 2020 election work for Trump because the pair was likely planning to defraud the US and engaging in a conspiracy to obstruct Congress, according to that court proceeding.
The impact of House referrals isn’t yet clear because the Department of Justice is looking at Trump in its investigation. The committee could issue as many as six different categories of referrals, which could include ethics referrals, discipline referrals, and campaign finance referrals.
The committee held show trials of Never Trump partisans who were a stain on the country’s history, according to Steven Cheung, a spokesman for Trump.
Rep. Zoe Lofgren, a member of the committee, told CNN’s Jake Tapper Friday that the panel has “been very careful in crafting these recommendations and tethering them to the facts that we’ve uncovered.”
We spent a lot of time on the code sections and the bottom line recommendation, but we also had to keep in mind the facts, that people will have a vote on it, and that is really important.
Report of the Joint Committee on Investigations into the 2016 U.S. Capitol Attack Attack and Implications for an Integral Committee of the House Judiciary Committee
The Justice Department has largely focused on criminal statutes related to the violence, for obstructing a congressional proceeding and in some limited cases for seditious conspiracy, when charging defendants in connection with the attack on the US Capitol.
The full report of the committee will be released on Wednesday, according to Thompson. The Mississippi Democrat said the panel will approve its final report Monday and make announcements about criminal referrals to the Justice Department, but the public will not see the final report until two days later.
Multiple sources have said that the panel has weighed the criminal referrals for a number of Trump allies, including his former lawyer Rudy Giuliani, former White House chief of staff MarkMeadows, and Justice Department official Jeffrey Clark.
“Ours is not a system of justice where foot soldiers go to jail and the masterminds and ringleaders get a free pass,” said Maryland Rep. Jamie Raskin, a Democratic member of the committee who dramatically unveiled its criminal referrals.
Yet the panel, despite delivering what it called a “roadmap to justice,” has no power to try Trump and its decisions are not binding on the Justice Department. DOJ has its own investigation and faces prosecutorial decisions that require a higher bar than the committee’s political gambits. There is little case law precedent for the charges concerned. The department has a dilemma, as the indictment of a current White House candidate who has used violence as a political tool is among the most damaging things that could happen to them.
Since many of the mob that trashed the Capitol have been convicted and jailed, the issue of accountability gets to the core of the comment about foot soldiers. And since winning the White House in 2016, Trump repeatedly avoided paying political and legal prices as the ultimate example of a “ringleader” who skips past judgment. RobertMueller, the former special counsel, uncovered a trove of information that showed that Trump was involved in obstruction of justice but did not find that the then-president committed crimes. Most of the Republicans in the Senate found reasons not to convict Trump twice, even though he was impeached twice.
The committee laid the groundwork for its referrals after hearing that Trump knew he lost to Joe Biden, but was still using multiple vote-stealers anyway, and a crowd that invaded the Capitol as lawmakers met to confirm Biden’s victory.
The televised hearings and summary released Monday paint a devastating picture of the assault on the constitutional order and the peaceful transfers of power from one president to the next.
The committee cites Section 1512 (c) (2) of Title 18 of the US code, which makes it a crime to “corruptly” obstruct, influence or impede any official proceeding or attempt to do so. The panel presented what they believed to be the plan by Trump to undermine voters’ will in the run-up to the mob attack on Congress.
Defending the Insurrection Using the Witnesses of the Commission on the Instability of the 2020 Insrection
The Department of Justice has its own investigation into the events surrounding the insurrection, so it will have to decide whether or not to prosecute the case in a court of law.
The ex-FBI deputy director said that the Justice Department needed to go even further with each and every one of the people who were interviewed and touched by the committee.
The committee’s structure means that it’s not possible to get a complete picture of the evidence. Some witnesses may have made statements that were in bad taste, or that may very well be used by his lawyers in court.
CNN legal analyst Elie Honig said that the lawyers for Donald Trump would go through every word of it. They are going to look for any inconsistencies, they are going to look for any basis to attack the potential witnesses against them, preferably in court. That is what defense lawyers do.
The nature of the insurrection and the involvement of a former president complicates matters for the Justice Department. A good defense team can try to muddy the idea of what Trump really believed regarding the 2020 elections by saying he wasn’t trying to rig the election. They can claim that he was exercising his constitutional rights in telling his supporters to fight to save their country. If Jack Smith and Garland decided to prosecute, they would need to consider the likely thrust of Trump’s defense first, so they would not have to worry about getting a conviction.
The most serious referral would likely be against the First Amendment, Rod Rosenstein, who served as deputy attorney general in the Trump Justice Department, said in an interview.
The Department has to show the president’s comments were inciting lawless action. In other words, they’d actually have to prove he intended for a mob to engage in violent activity. It would be difficult for him to be charged under that charge.
The opinion of the select committee that the former president must be indicted is unlikely to be influenced by the prosecutors at the DOJ. Still, the volume of testimony and other documents that have been amassed by the panel could be useful to the DOJ’s investigation, which is one reason prosecutors have been keen to get hold of its testimony and other materials for months.
In the event that DOJ agrees with one of the lesser charges, the political earthquake caused by a prosecution might not be much different from if Smith believed Trump had aided an insurrection. In the past, America had never seen a situation in which the administration indicted a successor for trying to oust a sitting president. The possibility of charges against Trump in another Justice Department investigation regarding his Mar-a-Lago resort if no case is made over January 6 is also a possibility.
One way that the committee’s graphic depiction of Trump’s aberrant behavior could help Smith is by preparing the public – at least the portion that does not simply defend Trump whatever he does – for the grave possibility that a former president could go on trial. Attempted coups are, after all, more akin to fragile developing world democracies and dictatorships.
Liz Cheney, committee vice chair and a Republican in the House, left no doubt of the committee’s ultimate purpose, one that she is unlikely to give up even when the House GOP majority takes over.
“No man who would behave that way at that moment in time can ever serve in any position of authority in our nation again. He is unfit for any office,” the Wyoming Republican said on Monday.
The precedent Ford set seems to have paralyzed a half-century of prosecutors. That precedent and Justice Department policy have left the United States with what seems an untenable situation — presidents are immune from prosecution in office and politically untouchable after leaving office.
There is a new book from the legal pundit and former prosecutor, that says federal prosecutors in New York contemplated bringing charges against Mr. Trump after he left office regarding the Stormy Daniels cover. The draft indictment for Mr. Trump’s former personal lawyer Michael Cohen, Mr. Honig writes, left no doubt: “Trump wasn’t merely a bystander or an unwitting beneficiary of the campaign finance crime. He was the driving force behind the scheme, and likely criminally liable for it.”
But those prosecutors ultimately demurred, feeling that prosecuting the former president was best left for more serious charges than campaign finance violations. (Perhaps now Mr. Bragg will pick up where they left off.)
Similarly, the special counsel Robert Mueller documented and collected evidence around possible obstruction of justice by Mr. Trump while in office, and the Mueller report states that this evidence prevented investigators “from conclusively determining that no criminal conduct occurred.” Now that he’s out of office, no prosecutor has tried to pursue this material. There seems to be a fear of being the first to break the precedent. France, Israel and South Korea are some of the countries that have been willing to bring their leaders to justice. In January, the British police fined Prime Minister Sunak for not wearing a seatbelt, and his predecessor Boris Johnson was fined for hosting parties that violated the Covid lockdown rules. A charge against a powerful person would clear the basic principle that laws apply to everyone.
We’re able to prosecute state governors. Governors from Connecticut, Louisiana, North Carolina, and Ohio have all been accused of state or federal criminal charges in the last 14 years. The former speaker of the House, Dennis Hastert, is among several congresspersons who have been charged with criminal offenses in the last decade. Democracy is chugging along fine.
The commander in chief is undoubtedly a unique case, and the bar and evidence necessary to prosecute a former president should be high. But in the Stormy Daniels case, Mr. Trump was clearly implicated in court papers. If he’d been anyone else, he almost certainly would have faced felony charges. How is it better for our democracy for him to escape a prosecution that could have landed him in jail?